tv [untitled] September 9, 2010 9:00am-9:30am PST
a fair trial. >> the court has to determine that it is material to the case. that is really the thresh hold. >> i if may chime in what commissioner hammer and i talked about, i think it is clear under pitchess there is a five-year wash-out period. object vuts -- obviously an officer makes mistakes. a couple years ago, an officer got drunk and punched out his neighbor, does that mean he can't testify to a homicide arrest. it shows terrible judgment, bad judgment, but they are humans. it doesn't mean they are not telling the truth on the stands. i think it is important that people realize that. president marshall: commissioner chan. commissioner chan: thank you for all the work it took to put this together. appreciate it. i wanted to put -- i mean just suggest that we work on
codifying this as a department general order. i don't think we can do this tonight. we do need to speak with the o.c.c. and all the other parties involved and review this in depth. but i just want to put some ideas out there as we are reviewing this and considering implementing a d.g.o.. i don't have a ton of changes. i don't think my changes are huge changes. but i think it will help with the process, move it a little bit further. with these two questions first, has the public defenders office, have they been able to have any input on this document from the bureau owner? >> yes. commissioner chan: was there a reason behind it? >> there was no reason behind it. we didn't see that there was a stakeholder in this process. commissioner chan: in terms of other brady policies, were there other brady policies from other cities or counties that were looked at, or are we the only ones with a brady policy?
>> no, we looked at ventura and los angeles county. >> you would call this more of a hybrid policy between the two. commissioner chan: what was the reasoning behind the pieces? >> we looked at what would tailor to the needs of our particular department. our first draft had a lot more in here that the p.o.a. objected to, which is why we took it out. i told you before, they had an attorney from the los angeles -- from los angeles that they were conferring with at the meet and confer, and they were also -- she was very vocal in some of the things she wanted in and some of the things she wanted out. supposedly she had worked on both models as well. commissioner chan: i'm going to run through my list and i will try not to take up foo much time. -- take up too much time. with the appointment of the
brady judge, i think that is a great idea. i think the former commissioner is respected and is a great addition. since the commission is not represented on the brady committee, i could see there is probably reason why the commission is not on the brady committee, but there should be some sort of relationship, and one piece is having the commission review the judge that will be placed on the committee. was that discussed at all, at the commission? >> actually, the request that the judge be placed on the committee came from the p.o.a., and collectively we all thought it was a great idea. that was one of the names that came out. we didn't see a need to look for a lot more, realizing that not only was he a retired appellate court accident but he also -- court, but he also held a position on the appeals court. commissioner chan: this judge seemed highly qualified.
the burden of proof for the brady committee to decide whether or not something is material. is there a burden of proof? what is the standard of proof? >> that i couldn't tell you. it is a collective decision twt attorneys in the room decision from the attorneys in the room and the commission members. commissioner chan: my suggestion would be to add that in there for more guidance, also to review for the brady decision. the chief approves or rejects it. is there a standard? >> the standard is with the chief. >> it will be the preponderance of the evidence. commissioner chan: and for review, it is de novo so you look at it all over again. if it is clearly erroneous, is there a problem with that, and
also ash trare -- arbitrary or capcapricious. i think it is good to have a standard of review for the chief. >> again, based on the fact that administrative law is based on a preponderance of the evidence, quite frankly, given the quality of the panel that we have today, i don't foresee that i'm going to be overruling that panel, and frankly, i think the intention is we will continue to vay high quality of the panel. so while there may be disagreements from time to time, i don't foresee overruling them, unless they were capricious or erroneous. ost object -- obviously the p.o.a.'s are the standard and they won't allow a capreeshes --
capricious standard to be the rule. commissioner chan: and the burden of proof is for the initial trial process, and that is preponderance beyond a reasonable doubt. the standard doesn't include beyond a reasonable doubt or preponderance of the evidence. it is three catagories -- de novo, clearly erroneous, or -- clearly legal jargon, but it is important to find something that parallels that. >> this is something that continues to playing -- plague the department. it is the overly legalistic way that we look at police discipline. it is not the way it is done around the country in many places. i think a preponderance of the evidence is a reasonable way to look at this. if it appears that the panel has exceeded their authority based on that standard, that is a reasonable way to look at it. we happen to be cursed that we have a police of chief that is
also an attorney, and most chiefs of police are not attorneys and quite frankly wouldn't understand what you are talking about. i think we need to go back to a reasonable process where a lay person can evaluate the process and make it -- >> you mean like me? commissioner chan: perhaps some sort of a standard. >> i think we just have to be careful. we are having problems with our discipline problem here, and often being held to a standard on an administrative discipline process that is now the standard in the industry. the fact we are being asked to meet it beyond a reasonable doubt process. so we have to kind of travel back and go back to what administrative law and discipline is about, so i want to keep it very simple. commissioner chan: from my understanding of what the cases are zoo far, we have applied the preponderance of the evidence. commissioner chan: moving on to
my final suggestion here, i think that there should be a sub section e added in the fourth main section and that's very simple, to report to the commission on a quarterly or half-year basis as to the names that are turned over, and this can of course be in closed session. those are my initial suggestions as we talk about codefying this. >> and i understand the preponderance of the evidence is the rule, and we are reminded of that over and over again. i take issue with the fact that we are too legalistic and we require beyond a reasonable doubt. i don't think that's true. i don't follow that standard. president marshall: commissioner hammer? commissioner hammer: i want to second every one of commissioner chan's suggestions. most of them, again, kudos to the department, but the
commission has a duty to enshrine this i believe. at some point we'll be gone, but it should be enshrined in this department. president marshall: stick around here. [laughing] commissioner hammer: i hope you stay around a good while. i'm a third generation san franciscoan, and i hope you stay around a good while, but i think some of the suggestions commissioner chan suggested are good ones. especially some oversight. i think these numbers are important. at the end of the day, especially, we're going to lose, what, 70 officers this year? that we really should have a feel for what extent we are losing officers to the street for other reasons. so we know the impact of it, it's about public safety. i would suggest that maybe at our retreat, sometime in obblingt or november, when -- in
october or november we have this . i'm surprised we didn't confer with the public -- district attorney. they are the ones that will throw out the conviction at some -- it would be good to hear what the public defender with say -- would say. so we can make it tighter so we don't lose convictions down the road. i think that's a good idea. president marshall: i anything else? commissioner chan: i think we should suggest some kind of action going forward. >> actually, i have a suggestion. after all the time and effort that went into this bureau of order, maybe we should let it be as a pilot project and watch how it goes, because i think it will be easier to tinker with. but we should give it a little more time, because at the end of the day, it should end up in the d.g.o. but at the end of the day, this
oir pilot project, -- this could be our pilot project, and then at some point down the road, start to evolve this document into a department general order, but let's give it a little more time. we should talk about this on our retreat, but let's give it time and see how the document works. new hampshire november will be three months. i think you are right, we ought to see how it plays out. we ought to see how sometime down the road it will work. commissioner chan: it takes months to go through the d.g.o. process, so there is no reason we can't have a parallel d.g.o. process as we are plotting this and watching how it works. i would suggest that we move forward with the d.g.o. development process, and at the same time watch how this order is being implemented and how it is working. commissioner dejesus: and i also think setting the standard,
whatever it should be, there should be some standard that they should follow and that they know they should follow and hopefully meet that standard. i think some of the suggestions you made are great. i also think it would be great if the commission notifies who the retired judges -- if judge lowe is no longer going to sit or you are going to bring another justice on or retired jurist or whatever, there are some legal things that you mentioned that are jermaine to the bulletin -- that are really germane to the bulletin that is out right now. commissioner chan: are there commissioners interested in working with them to work on this bureau order and determining how to codify this? >> i can do this. president marshall: can't be more than three. >> the three of us? >> ok. commissioner chan: ok. i don't have to do it.
commissioner hammer: that's a great idea. thank you for volunteering. >> ok. i didn't mean to. ok. >> we thank you very much. >> to maybe it will come back and calendar this for a future date wungs we are ready with the documents. president marshall: since we are taking up all these things about the retreat, an item for discussion, then -- commissioner chan: thank you. president marshall: thank you very much. we'll take public comment on item number 5. any public comment on this particular item? >> hi, everyone. how are you. i work at mission centers at the bergen dwellings. i came here on a subject that i
believe i tuck touched on at the last commission meeting. it is a particular officer, because of his absence in our area, we are dealing with a full-fledged race war. there have been two shootings. i don't know if they are recorded. i talked to captain corales who immediately jumped on the situation. but since officer valentin's removal, that place is chaotic. i deal with small children, and recently last week, we had a shooting, and it was right in front of my face. there were kids playing at the park. the people that responded to the shooting were all new people to the mission area, and they had no knowledge of the people that
worked there. they didn't know me. they were very disrespectful. a lot of foolishness going on between them and i. words were exchanged. it was chaotic. i am one for community policing. i sit on your youth advisory foreyum. we discuss community policing at these meetings all the time. this officer is a 30-year-plus seasonned officer that is a pillar of what a police officer needs to be, as far as i'm concerned. i brought today a petition from community members that was signed by everyone because of his removal. i was asked, where is he? where he is he?
where is he? i came to find out he was in some kind of disciplinary trouble. i do know he has put his life on the line plenty of times to help people in their community. this is a community within a community that is always, always forgotten. african-american families and latino families live there, and we have a race war. and i can't get no help. i can't get officers to come where we are at. i don't know how to find them, i don't know how to call them, but people know they are not there. and when they know they are not there, they come back with the drugs. the liquor store sells liquor to under-aged minors. i reported it -- [bell [
>> all i'm asking is, we need him back. where ever he is, whatever he's done, the community will support him. we just need him to come back. president marshall: further public comment on this item. >> i am a parent of a young child who has been involved in the juvenile justice system who has been hanging around vernal dwellings, and i'm one of those parents out there who wants to advocate for the kids. we are talking about removing officers. i want to talk about the impact when the community is not aware of what happens, why officers are being removed because of their past or whatever situations that are happening.
i feel it is important that meetings like this be held so we can know. you may have an officer that was working with you guys, but he's no longer here. give us information. don't just pull officers we have established a ra pour with out of the community that have been making an impact. what is happening is, we have a race war. latino kids and african-american kids shooting and killing each other. vernal dwellings is a project, and it is important for the officers to -- for the people to understand why the officers are being removed. i know you are holding police advisory boards, and maybe through those meetings you can let us know why officers are not on the street anymore. maybe we can add this onto the next agenda item, because we have about 40 families that did
not want to come today but could not make it today. we feel we should at least get an explanation of why officers are k removed from certain beats. president marshall: i will talk with you about the community working with the young people out there. i would like to do that. no further comment? >> i wanted to know if it is possible, chief, if it is possible, to have members of the department meet with the community members in this building and maybe establish a conversation going forward since there has been new officers at the building. >> are we permitted discussing officers under discipline -- commissioner chan: not discussing, but moving forward. >> i think the law is clear on
this. commissioner chan: i'm talking about developing a good relationship with the new officers. not the private case at all. commissioner dejesus: the fact they are talking about race wars going on and shooting of different communities, it is something we should certainly talk about. i do think there should be dialogue set up. commissioner chan: is that possible, chief, to have a conversation about nonconfidential matters but to make sure residents feel comfortable with new officers coming on scene and getting to know each other? thank you. president marshall: would you please call item number 6. >> item 6 is routine administrative business under which item 6-a is commission
announcements. 6-b, scheduling of items identified for consideration at future commission meetings. i have one announcement under 6-a. i would suggest that -- my recommendation would be that we continue that for a larger discussion that's scheduled. i do have a location identified for that. which i should get confirmation on -- which i do have confirmation on, and that is at the embarcadero center. i was able to ensure the embarcadero center. however, our agenda is still subject to the 72-hour
announcement. commissioner dejesus: what time? >> regarding the change of venue for our meeting. the agenda announcement remains 72 hours. >> i'm sorry, lieutenant, at what time of the day would we be starting? >> at your pleasure, commissioners. >> 9:00 in the morning? commissioner hammer: how about 9:00 to 1:00, and we'll do a working lunch. >> there were some people invited to join the commission, so we just have to make sure we coordinate schedules. commissioner hammer: are we under 6-b? i don't know where we are at on the gent. i'm just asking. >> on 6-a. i'm just recommending that the case assignment.
there is no announcement from the commission members that would bring us to 6-b. commissioner hammer: i think we received -- i think we are booked through the month of september and into the month of october. probably the best thing to do at this point, we have an october 2nd retreat. maybe we should sit down and without talking publicly about i like this idea, i like this idea, maybe we will firm this moving forward, but up until october, we are fairly solid. >> are you talking about 6-b? commissioner hammer: i'm wondering, when you give your chief's report, if you know what the situation is around bernal dwellings.
>> i do not know at this point. commissioner hammer: i think it would be good to address it. it would be helpful to hear what the crime situation is. thank you. >> any other items we should discuss tonight? hearing none, any public comments on line item 6-a and 6-b. hearing none, please call line item 7, please. >> item 7, mr. president, is public comment on all matters pertaining to the closed session. closed session is described under items 9-a and 9-b. 9-- 9-a being pursuant to government code section 54957-b-1 and san
francisco administrative code section 67.10-b and penal code 832.7, public employee performance evaluation, chief of police. review of findings and decision to return officer to duty following officer-involved shooting. b is pursuant to government code section 54957 and san francisco administrative code section 67.10-b and penal code section 832.7. president marshall: please call item 8. >> the question whether to move into closed session. >> second. >> with that, we move into closed session. the commission retires to closed
session at 7:01 p.m., and the chair is asking that the room be >> commissioners, welcome back. it is 8:13 p.m., and the police commission is returning to open session from the closed session portion of its agenda moving away from item's 9-a and b. i will note for the record the presence of all members of the commission. at the conclusion of our closed session, commissioner we did continue item 6-a, which is an announcement regarding the assignment of disciplinary charges filed in case number jwac10-195 to an individual commissioner for the taking of evidence on a date to be determined by the commissioner. if there is no public comment on that, commissioner? president marshall: any public comment? hearing none.
>> that will britain us to the next item in order, which is 10, and that is a vote to elect whether to disclose any or all discussion held in closed session. commissioner hammer: move for nondisclosure. president marshall: second? commissioner dejesus: second. president marshall: so ordered. item 11. >> lastly, item 11 is adjournment, for which we need a motion. commissioner hammer: so moved. >> second. president marshall: the meeting is adjourned. thank you very much. >> thank you, commissioners. the police commission concludes business at 8:15 p.m. commissioner chan: good night. [whereupon at 8:15, the proceedings were adjourned]